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In the new Commonweal, I review Paul Horwitz's The Agnostic Age. I'm not sure how far the book ultimately takes us in terms of sorting out religious liberty quandaries, but it raises some fascinating questions while providing a fresh take on the quandaries themselves. He asks us to acknowledge the possibility that the religious claim underlying a dispute could potentially be true before deciding the claim's legal weight -- i.e., taking an agnostic stance toward the claim's truth value. An excerpt from the review:

Horwitz thinks that greater empathy for religious claimants would lead to greater liberty, with constitutional agnosticism essentially putting a thumb on the scale in favor of the claimant. Thumb on the scale or not, we are still faced with the vexed question of how to balance the claimant’s interests against the state’s. Horwitz insists that taking the stakes of these cases seriously “does not demand that we go past our breaking point.” But his constitutional agnosticism does not help us identify the breaking point any better than any other theory of religious liberty. We can all agree that the state should reject religious arguments for child sacrifice, but most real cases are not that easy. In a few states, permitting Catholic Charities to exclude same-sex couples from its pool of adoptive parents went too far. The French state has decided that just wearing an Islamic veil in public goes too far. It is not clear how the empathy of Horwitz’s constitutional agnostic would bear on either case.

. . . . Constitutional agnosticism, he explains, “honors Pontius Pilate’s question—‘What is truth?’—but condemns Pilate’s shrug.” So what, the reader might ask, should Pilate have done as a constitutional agnostic? The crowd calling for crucifixion was making religious truth claims—that Jesus was not the son of God, and that describing himself as such amounted to blasphemy against the one true God. Should Pilate have deferred to the potential truth of those claims and ordered crucifixion with more enthusiasm and less hand-wringing? If Pilate had stepped in to protect Jesus, it probably would not have been because of empathy for Jesus’ religious-truth claims, but because of respect for a shared human value that is squarely within the earthly law’s ordinary domain: human life should be protected. More work to identify the bedrock values that define our “breaking point” would provide a more helpful—though still frustratingly messy—path through the maze of religious-liberty disputes than any effort to assume the truth of claims that lie beyond our collective grasp.

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Interestingly, on Amazon the list price is $65, and the discounted price is $56.04, but the price of used copies ranges from a low of $80 to a high of $116.25. If this pattern holds, you can buy a new copy, read it, and then sell it for a tidy profit. :)

Rob, thanks so much for this review. It's tough but eminently fair and I think it does get at a central question left unanswered by the book. For what it's worth, I will say one thing briefly and then just link to something else. First, I think it's fair to say that I acknowledge this problem in the book. An important part of the framework of the book is its "tragic sense": its sense that the conflict between religion and liberal democracy is finally insoluble because it involves a clash of incommensurable values. I do believe that conflict can't be resolved by laying religious truth to one side, and that it can be eased by taking religious truth seriously, and so I think there's some ongoing value to my approach. But I also am emphatic in my book that neither constitutional agnosticism nor any other approach can finally resolve this tragic conflict, and I wouldn't want readers here to think I'm naive or utopian in my account of my own approach. Nevertheless, I think you quite rightly ask whether constitutional agnosticism tells us enough about what the "breaking point" is. The most I can say is I think I give us a better sense of how to conduct our dialogue with the "losers" in such conflicts than what courts do now; but I do not answer the question in any final sense. I think I have to do a lot more thinking about "the breaking point"--what it is, when we reach it, how we know, and indeed whether we can say much at all about it. So I think your criticism is well taken. Pray wish me well, that I may have more opportunities to continue trying to answer that question.